The Military’s Hail Mary

The latest reason to worry about the military’s handling of sexual assault complaints comes from Jo Ann Rooney, President Obama’s nominee for under-Secretary of the Navy.

Asked what the consequence would be of letting an independent, professionally trained military prosecutor outside the chain of command decide which sexual assault cases to try — the sensible reform pressed by Senator Kirsten Gillibrand, Democrat of New York — this is what Ms. Rooney had to say in written testimony submitted prior to her confirmation hearing last week:

“A judge advocate outside the chain of command will be looking at a case through a different lens than a military commander. I believe the impact would be decisions based on evidence rather than the interest in preserving good order and discipline. I believe this will result in fewer prosecutions and therefore defeat the very problem that I understand it seeks to address.”
Ms. Rooney’s unpersuasive claim that Ms. Gillibrand’s proposal would somehow undermine discipline or end commanders’ accountability has been heard before, from Secretary of Defense Chuck Hagel, among others. But the implication that there is something wrong with basing prosecution decisions on the available evidence is both new and alarming.

“Under what world would you recommend the decision about whether a serious crime, meaning a conviction that could mean more than a year or more, should not be based on evidence?” Ms. Gillibrand inquired of the nominee.

Ms. Rooney, a lawyer who now serves as the Principal Deputy Undersecretary for Personnel and Readiness, had no good response.

“What is counter to good order and discipline is victims’ inability to access justice because legal decisions are based on commander bias rather than evidence,” aptly remarked Anu Bhagwati, executive director of Service Women’s Action Network, which supports the Gillibrand bill, following the hearing. “Diminishing the importance of evidence in criminal cases is, frankly, un American.”

Correction: October 15, 2013An earlier version of this blog post misstated the given name of the executive director of Service Women’s Action Network. She is Anu Bhagwati, not Ann.